Chair Cicilline's Opening Statement at Hearing on "The Administrative Procedure Act at 75: Ensuring the Rulemaking Process is Transparent, Accountable and Effective"

Statement

Congressman David N. Cicilline (RI-01), Chair of the House Committee on the Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law, is holding a hearing today on "The Administrative Procedure Act at 75: Ensuring the Rulemaking Process is Transparent, Accountable and Effective." The Congressman's opening statement, as prepared for delivery, is below.

Congress enacted the Administrative Procedure Act 75 years ago to establish guardrails to ensure that the rulemaking system is open, effective, and accountable. The APA was enacted in the wake of the New Deal, which created new federal programs and agencies to respond to the Great Depression.

In the decades since, Congress has enacted landmark legislation to promote the public interest and protect children, workers, consumers, the environment, and society's most vulnerable.

These laws ensure that we have clean air to breath and clean water to drink, that food and medicine are safe, that workers are safe on the jobsite, and that borrowers and investors do not get ripped off by predatory lenders. In most cases, Congress tasks agencies with implementing these laws through rulemaking, adjudication, and enforcement.

Today's hearing is an opportunity to discuss proposals to update the Administrative Procedure Act and other laws to ensure that the rulemaking process is effective, transparent, accountable, and consistent with Congress' intent.

Congress has long directed agencies to implement and enforce the laws. It is crucial that our agencies and our rulemaking process are accountable, and that they provide real benefits that improve people's lives better every single day.

It is equally critical that the rulemaking process aligns with our democratic values. Administrative agencies should not be yet another venue that gives powerful corporations and the wealthy greater access and influence than the public, workers, small businesses, and disadvantaged communities that do not have armies of lobbyists.

It appears our current process is struggling in this regard. As Professor Wendy Wagner will testify, "Only about half the rules that affect the public involve at least one public nonprofit or other commenter that is not a regulated entity…. And in proceedings in which a public interest representative does file a comment, that entity is almost always outnumbered--at least twofold and in some studies tenfold--when compared to industry comments."

Many corporations are still using the Big Tobacco playbook to influence and delay agency action. As Dr. David Michaels will testify, powerful corporations employ a "strategy to convince regulators that hazardous products are not so hazardous after all; or, at least, that there is so much uncertainty that there is inadequate convincing evidence to increase protections for members of the public exposed to that product."

It is critical that we address this problem. Delay often directly contradicts Congress' intent when it instructs agencies to keep the public safe and promote the public interest.

We must also make sure that Congress does not allow the courts to undo the will of the people. For decades, Congress has directed agencies to implement statutes by issuing rules. However, in recent years, the Supreme Court has begun to threaten to dismantle the system of governance that has existed for 75 years.

Conservatives on the Supreme Court appear poised to try to achieve what they have been unable to win support for at the ballot box. In a 2019 dissent in Gundy v. United States, Justice Gorsuch--along with Chief Justice Roberts and Justice Thomas--proposed to resurrect the long-dormant non-delegation doctrine. Justice Gorsuch and his colleagues would invalidate the longstanding practice of Congress directing agencies to implement and execute the laws Congress enacts.

The result would jeopardize nearly every federal program enacted under both Democrats and Republicans since the 1930s. As Justice Kagan correctly explained, the logical conclusion of Justice Gorsuch's dissent would require that "most of Government is unconstitutional."

Today's hearing is an opportunity to explore potential paths forward for fixing these and other problems plaguing our rulemaking system.

With that in mind, I am proud to cosponsor Congresswoman Jayapal's legislation to address many of these issues, the "Stop Corporate Capture Act."

This important measure will ensure a more accountable, effective, and transparent rulemaking system. It requires greater disclosure and transparency in rulemaking proceedings, creates a Public Advocate to provide for more robust public participation in rulemaking, and ensures that agency actions to implement and enforce the law accurately reflect congressional intent.

I look forward to hearing testimony from our esteemed panels of witnesses on these matters and their proposals to address problems in our rulemaking system.

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